Council to pay £10,000 and costs to man with learning disabilities after delay in providing sex education required following capacity assessment

A local authority has agreed to pay £10,000 in damages to a man with learning disabilities after it breached his human rights by delaying him with the sex education required to help him gain capacity to consent to sexual relations.

In a Court of Protection ruling last month, judge Sir Mark Hedley said the case may be “unique” since it addressed the question of capacity to consent to sexual relations within a marriage, while other cases where the courts had made declarations of incapacity to consent generally concerned “restraining sexual disinhibition to protect from abuse or the serious likelihood of abuse”.

He found that the man was entitled to compensation since he did not start to receive sex education, which was recommended following a capacity assessment by a consultant psychologist, until more than a year after his wife had been told by the council to abstain from having sex with him.

Capacity to consent

In an assessment in late 2014, the psychologist found that the man, CH, who is 38, was born with Down’s syndrome and has an associated learning difficulty, lacked capacity to consent to sexual relationships.

Sharpen up your capacity assessments

Leading Court of Protection barrister Alex Ruck Keene will be running a refresher session on assessing capacity at Community Care Live London. This will include advice on how to take all practicable steps to support a person to make a decision.Register now for your free place at the event, on 26-27 September.

The assessment had taken place after CH and his wife, WH, had sought fertility treatment. They had been married since 2010, lived together in CH’s parent’s home and “enjoyed normal conjugal relations”.

They were told of the result of the assessment on 27 March 2015 and that WH had to abstain from sexual intercourse with CH because that would, due to his lack of capacity to consent, comprise a serious criminal offence. Sexual activity with a person who lacks the capacity to consent is an offence under section 30 of the Sexual Offences Act 2003.

The couple complied and WH moved into a separate bedroom, and in order not to “lead him on” she “significantly reduced any physical expressions of affection” towards CH, the ruling said.

WH had “reasonably understood from the Local Authority that should she fail to comply, safeguarding measures would be taken which would require the removal of CH (or herself) from their home”.

‘No satisfactory explanation’

At the same time, the psychologist said that CH needed to have a course of sex education to help him gain capacity to consent to sexual relations. This was in line with the second principle of the Mental Capacity Act – that “a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success”.

However, the ruling found that “for reasons that have never been satisfactorily explained”, the local authority failed to provide the education “despite requests and protracted correspondence”.

CH’s sister, SH, acting as his litigation friend, instituted proceedings in the Court of Protection in February 2016. The court then made an order for the sex education to go ahead and the relevant course then began on 27 June 2016 and was completed within the expected timescale.

The therapist then reported that CH had “made sufficient progress in all areas save the understanding of health risks from a sexually transmitted disease”. However, since CH and WH were in a “committed monogamous and exclusive relationship”, he questioned whether that was “relevant information”, the judgment said.

A single jointly-appointed court expert, a consultant psychiatrist, then advised that further sex education was needed and this was delivered by the same therapist in early 2017. On 19 March 2017 the expert advised in writing that CH had capacity to consent to sexual relations, a view accepted by the local authority. In May 2017 CH and WH were entitled to and did resume a “normal conjugal relationship”.

Article 8 breach

A letter was then sent to the local authority on behalf of CH making a claim for damages under the Human Rights Act 1998 (the HRA), on the grounds that his right to private and family life under Article 8 of the European Convention on Human Rights had been breached.

Under section 6 of the HRA, it is unlawful for a public authority to act in a way that is incompatible with a convention right.

The judgment said, “no-one seeks to suggest that an enforced abstention from conjugal relations is not on the face of it a breach of that right [under Article 8]”.

However, the judge pointed out that Article 8 was a qualified right that could be interfered with in certain circumstances, including when in accordance with the law and for the prevention of crime. This meant that some of the “incursions on the conjugal relations of CH and WH” were therefore justifiable . This included advising WH that she must abstain from sex with CH on the grounds that it would constitute a serious criminal offence, and proposing the sex education course in the first place.

Sir Mark said the most serious aspect of the complaint was the delay in providing the sex education to CH between 27 March 2015 and the start of the first sexual education programme on 27 June 2016. The local authority did not contest the conclusion that it was in apparent breach of the Human Rights Act on this point, he said.

Before the hearing, the local authority offered to make a formal apology to CH for the delay from January 2015 to June 2016 in providing him with the sex education to which he was entitled, and agreed to pay him £10,000 in damages and to pay his pre-action costs and £21,600 in costs related to the previous Court of Protection proceedings. The judge agreed that this settlement was in CH’s best interests.

‘Protecting the vulnerable’

Sir Mark added that the case “seems to me to raise some important questions both about liability and damages under the Human Rights Act 1998 but also about the risks or cost of protecting the vulnerable”.

He added: “Many would think that no couple should have had to undergo this highly intrusive move upon their personal privacy yet such move was in its essentials entirely lawful and properly motivated. As I have said, perhaps it is part of the inevitable price that must be paid to have a regime of effective safeguarding.”

Register now for Community Care Live London for two days of free and essential learning to boost your CPD, sharpen your legal knowledge and improve your practice, on 26-27 September.

Very interesting article. Thought provoking… delays in supporting someone’s understanding when it’s believed they could gain capacity should be taken seriously.

This could set a precedent of how a lack of community health support could result in a council having to commission something separately.

I am also struggling to understand why he lacked capacity to consent in the first place. Would the threshold for consenting to sex not be lower than that of the consent to get married? He also had experience on his side to refer to. Sounds a bit like some judgments were made purely because of his learning disability.

Interesting case, consent and capacity to marriage and not to engage in sexual relationship,based on the information put forward by yourself. It is implied that intervention was regarding lack of insight and potential risk or harm or sexually transmitted diseases or out come of having sex

I kind of question who we are safeguarding here, and wasn’t there a need to do a bit of joined up thinking prior to promoted this intervention.

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